Citation Nr: 1626868 Decision Date: 07/06/16 Archive Date: 07/14/16 DOCKET NO. 15-15 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for scoliosis. 2. Entitlement to service connection for degenerative arthritis of the lumbar spine. 3. Entitlement to service connection for radiculopathy of the bilateral lower extremities. (The issues of entitlement to service connection for bilateral hearing loss, tinnitus, bilateral foot disorders, bilateral knee disorders, and a right ankle disorder, as well as entitlement to compensation under 38 U.S.C. § 1151 for a left shoulder disorder and entitlement to a total disability rating due to individual unemployability will be addressed in a separate decision.) REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from December 1981 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Regarding the issues of entitlement to service connection for degenerative arthritis of the lumbar spine, as well as radiculopathy of the bilateral lower extremities, these issues were previously characterized as simply entitlement to service connection for degenerative arthritis and radiculopathy. During the Veteran's Board hearing, which was held by the undersigned in April 2016, the Veteran testified that his claim pertained to degenerative arthritis in the lumbar spine (see Transcript, pp. 2, 4), and that radiculopathy affected the bilateral lower extremities (see Transcript, p. 5). As such, the issues on appeal have been recharacterized to reflect the Veteran's contentions of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The weight of the evidence is against a finding that scoliosis was incurred in, or permanently aggravated by, the Veteran's period of active service. 2. The weight of the evidence is against a finding that degenerative arthritis of the lumbar spine was incurred in, or otherwise related to, the Veteran's period of active service. 3. The weight of the evidence is against a finding that radiculopathy of the bilateral lower extremities was incurred in, or otherwise related to, the Veteran's period of active service. CONCLUSIONS OF LAW 1. Scoliosis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). 2. Degenerative arthritis of the lumbar spine was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 3. Radiculopathy of the bilateral lower extremities was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As for the duty to assist, service treatment records and pertinent post-service medical records have been obtained, to the extent available. The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding. The Board notes that a VA medical opinion was not provided in this case. However, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). To that end, aside from his own testimony and statements, the Veteran has not provided any medical evidence suggesting the disorders addressed herein are etiologically-related to his period of active service. As such, the Veteran's reports of undocumented, in-service injuries alone are insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection The Board notes that the Veteran has claimed entitlement to service connection for scoliosis, degenerative arthritis of the lumbar spine, and radiculopathy of the bilateral lower extremities, attesting that such were incurred during, or otherwise related to, his period of active service. To that end, the United States Court of Appeals for Veterans Claims (Court) has held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for chronic disabilities, such as arthritis or radiculopathy, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for this chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With regard to scoliosis, the Board notes that congenital or developmental abnormalities are not "diseases or injuries within the meaning of applicable legislation" and, hence, do not constitute disability for VA compensation purposes. See 38 C.F.R. §§ 3.303(c). Service connection may be granted, in limited circumstances, for disability resulting from aggravation of a constitutional or developmental abnormality by superimposed injury or disease (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990), Carpenter v. Brown, 8 Vet. App. 240, 245 (1995) and Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)). Turning to the Veteran's period of active service, his service treatment records reflect a left trapezius strain in September 1985. There are no reports of lumbar pain, or radiating pain to his legs, and scoliosis, degenerative arthritis in the lumbar spine, and radiculopathy were not diagnosed. On separation in October 1988, the Veteran's spine and lower extremities were deemed normal by an examiner, and the Veteran specifically denied recurrent back pain and leg cramps on his own Report of Medical History. Of note, the Veteran identified 10 separate disabilities on this report, suggesting that if he had been experiencing back problems, he would have mentioned them. Post-service, the Veteran has been diagnosed with each claimed disorder. A February 2011 x-ray indicated mild scoliosis, and such was confirmed in March 2013, along with lumbar arthritis and L5-S1 radiculopathy. Importantly, a review of the Veteran's voluminous private and VA outpatient treatment records fails to even suggest that his diagnoses of scoliosis, degenerative arthritis of the lumbar spine, or radiculopathy of the bilateral lower extremities are related to his period of active service. Regarding scoliosis specifically, although mild scoliosis was confirmed post-service, there is no evidence of record to suggest a superimposed, in-service injury as a result of this congenital disorder. As noted, service treatment reports are silent for any such diagnosis, to include residuals thereof. The medical evidence does in any way suggest that such disorder was permanently worsened during in service so as to support an award for service connection for this condition. During his Board hearing, the Veteran testified that, while working in the motor pool during active duty, he and three others lifted a wheel tire machine off of a pickup truck, resulting in back pain, and that he reported to sick call immediately thereafter. Per the Veteran, he was diagnosed with a pinched nerve, although the Board was unable to corroborate this statement. See Transcript, p. 3. The Veteran further testified that the act of working on vehicles while on his back led to his claimed lumbar disorders with associated neurological problems. See Transcript, p. 4. As for the latter, the Veteran indicated that leg pain began toward the end of his active service, though the Board again notes that such pain was specifically denied by the Veteran at the time of his separation from service. See Transcript, p. 5. With regard to the Veteran's statements during the course of his appeal in which he attributed his claimed conditions to his military service, the Federal Circuit has held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. Here, despite the Veteran's testimony about an in service injury and continuing lower back problems, the fact remains that following a review of hundreds of pages of service treatment records, the Board did not find any record of treatment for lower back pain or for radiculopathy of the lower extremities. Moreover, the Veteran specifically denied back problems at time of separation despite identifying a number of physical problems at that time. The separation physical also found his back to be normal. Following service, the Veteran worked relatively physical jobs for which he was reportedly passed physicals. As such, the Board simply does not find the lay testimony to be sufficiently credible to establish an in-service back injury or neurologic problems. Laypersons are considered competent to provide a medical diagnosis only if (1) the condition is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran is certainly competent to recount a history of back and leg pain, as such is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran has not shown that he is competent to make a complex medical determination involving the etiology of his claimed disorders, and his attestations are not supported by probative medical evidence. In sum, the Board notes again that the Veteran's service treatment records are silent as to a diagnosis of any chronic lumbar or neurological disorder, and there is no evidence of record to indicate that any such disorder was diagnosed within one year following separation from service. Regarding scoliosis, the Board again points out that the Veteran has not identified any superimposed disability resulting from his congenital disorder, nor does the evidence indicate that spinal curvature was permanently worsened during his active duty period. To the extent the Veteran asserts these disorders were continuously symptomatic since service, no such indication was made at the time of separation from service, and medical evidence of record fails to support his contention. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The weight of the evidence is against the Veteran's claims, and as such entitlement to service connection for scoliosis, lumbar arthritis, and radiculopathy of the bilateral lower extremities is denied. ORDER Service connection for scoliosis is denied. Service connection for degenerative arthritis of the lumbar spine is denied. Service connection for radiculopathy of the bilateral lower extremities is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs